Procesos de la Norma Pre analítica
6.5.9 MUESTRAS PARA ESTUDIOS DE LÍQUIDOS BIOLÓGICOS 1 Líquido cefalorraquídeo (LCR):
2. Otros líquidos (pleural, pericárdico, peritoneal).
55
1999 constitution of the Federal Republic of Nigeria, a person shall not be qualified to hold the office of a judge of the shari’ah court of appeal of state unless:
a- He is legal practitioner in Nigeria and has been so qualified for a period of not less than ten years and has obtained a recognized qualification in Islamic law from an institution acceptable to the national judicial council;
b- He either has considerable experience in the practice of Islamic law, or c- He is a distinguished scholar of Islamic law.32
However, as against this background in Zamfara state, any person who obtained the certificate of Diploma in Islamic studies, or Hausa. Islam or Arabic-Islam, in as much as he can read and write the Arabic, he can be appointed as a judge (Qadi) in Shari’ah courts.
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How would you decide cases? Mu’adh answered, “I shall decide according to the Book of Allah, the prophet then asked: and if there is nothing in the book of Allah, mu’adh replied: then according to the sunnah of the prophet, the prophet asked again: failing in both mu’adh replied I shall use my own judgement, there up on the prophet of Allah said, “praise be to Allah who enabled the messenger of the prophet of Allah to say what has satisfied the prophet of Allah.34
On the appointment of Ali (R.A) to another province of yemen, the prophet (S.A.W) advised him and gave the following instructions:
Impart to people knowledge of Qur’an and of the laws of Islam and decide their disputes, gathered the amount of religious taxes collected by the local official. In yemen.
When two disputants came to you, do not decide until you have heard the arguments of both the parties and you have clear understood the cases.35
No appointment is properly made without fulfilling of the following three conditions:
1- The caliph or (appointing body) must ensure the man to be appointed is qualified. If he is not qualified he should not be appointed. If it is necessary to make appointment before all the relevant information is available , the man should be given a temporary appointment subject to confirmation.
2- The person to be appointed must be given a clear description of his duties and the limits of his authority must be defined. Failure to do so negates the appointment.
3- The official awaiting appointment must be given his assignment in advance and its territorial limits must be clefined. It is forbidden for any appointment to be made on the basis of personal preference or favouritism.36
57 END NOTES
1. A.I Abican, Shari’ah crisis in Nigeria “Journal of international and comparative law”, np, 2002, P.3
2. Ibid P.
3. Zamfara state of Nigeria Gazzatte, 2000, no1, vol. 35, p.4
58 4. Ibid P.10
5. Ibid P.12
6. M.B Uthman, A General overview of the implementation of shari’ah in Nigerian before 2000 and beyond, np, nd, P.3
7. Section 36 (12) of the 1999 constitution of the federal Republic of Nigeria.
8. M.L Yusufari Shari’ah implementation in Kano, partner to Zamfara state nd, np, P.1
9. Ibid P.29 10. Ibid P.32 11. Ibid P.35 12. Ibid P.37
13. Section 38 of the 1999 constitution of the federal republic of Nigeria
14. Al-Tamhid limafi Muwataa minal Ma’ani wa-I asanid P.331, hadith N0.32
15. M. T. Ladan, The development and application of shari’ah in Northern Nigeria, issue and challenges, np, nd, P.1 16. Ibid P.2
17. Qur’an ch, 5:38 18. Qur’an ch,24:2 19. Qur’an ch, 2:178
20. M.S Ibrahim, Sunnan Abi Dawud, Dar al Kutub L-
59 Ilmiyyah, Beirut, Vol.1, P.123, N0.156 21. Qur’an ch, 45:18
22. Sunnan Ibn Majah V.6, P.86, N040
23. S.H.A Lallyi, 2011, Al-Maktabah al-Muhammadia ghullah mandi Okara, Pakistan, Al-Mirath (Justice of Islam in the rules of inheritance) P.50 24. Ibid P.52
25. Sa’ad, Tabaqat, np, Beirut, 1377, Vol.11, P.421
26. Ibid P.422
27. A.H yadudu, “The prospect for shari’ah in Nigeria,” Dept.
of Islamic law, B.U.K, 10127, nd, P.12 28. Ibid P.15
29. Qur’an, ch, 4:141
30. A.H Yaduku, “the prospect for shari’ah in Nigeria,” Dept.
of Islamic law, B.U.K, 10127, nd, P.18
31. Hisham, “Sirah:, vol. iv, np, P.260. Lampur (india) 1309, vol. 11, P.1063.
32. Section 30(10) of the 1999 constitution of the federal Republic of Nigeria.
33. Sahih Al-Bukhari V.9, P.94 N0160 34. Ibid P.95, N0.162
35. M.S Ibrahim, sunna Abu Dawud, Dar alkutub I-
60 llmiyyah, Beirut, vol.1, P.149 N0 195
36. Waki, “akhbar al-qudut,” np, Cairo, 1366 A.H, PP.88-87.
CHAPTER FOUR: JUDGES AND JUDGEMENT OF SHARI’AH COURTS IN ZAMFARA STATE 4.1 CODE OF CONDUCT FOR JUDGES
The one who is given the post of judge shall be committed with the following morals:
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1- He should be strong without violence, lenient without weakness, in order not to arouse the greed of the unjust of frighten the one who has the right.
2- He should be forgiving without accepting any insult from the mischief-makers.
3- He shall be patient without delay or negligence.
4- He shall be witty and characterized by deep insight, without self vanity or underestimation of any one.
5- The place of meeting people should be special to get adversaries and witnesses.
6- He shall impose justice among any adversaries in view of everything, as he shall not prefer one adversary to the other.
7- His session shall be attended by jurists, scientists of al-Qur’an and sunnah, in order to consult in case of any problem that may aries.1
A judge shall avoid the following characters:
(a) To judge while being angry or feeling any illness, hunger, thirsty, hot weather, cold weather, being bored or laziness, according to the messenger of Allah (S.A.W) who said:
A judge shall not judge between two adversaries while being angry2
(b) To judge in the absence of a witnesses.
(c) To judge according to his witnessing, of the witness of those whose evidence is not acceptable, the body, the father or the wife.
(d) To accept bribe
62
(e) To accept gift from those who have not given him any gift before his appointment as a judge (Qadi).
The authority of a judge, according to his post, deals with the following:
a- Setting between adversaries in all cases and claims, by the decisive judgments, or by agreeing between them in case of similarities, hiding or weakness of evidences.
b- Suppressing the unjust, supporting those inflicted by injustice and rights to other owners.
c- Judging in cases of marriage, divorce, alimony and the like.
d- Executing punishment limits and judging in case of blood retaliation, and wounds.
e- Judging in the property of those who are legally in capacitated from making any disposition in respect of their property without the consent of their guardians like minors, orphan, insane people, absentees and those completely prohibited to legally manage properties.
f- Judging in cases of public interest of the country lke roads, services and others.
g- Ordering people to perform righteousness, prohibiting, changing and eliminating the effect of unrighteousness in the country.3
The above are the code of conduct, a Qadi (Judge) should implement according to the Islamic law.
But, most of our contemporary Qadis (Judges) are found wanting in obtaining such qualities and from anybody, some of them engage in businesses, many of them
63
are the servants of the government, they some times accept directives from ernment;
they use to pass judgment in accordance with what they have been directed by the government even if is contradicts the law. If one of the highly placed people in the state is guilty, they release him without being punished, fearing that, if they judge against him they would be dismissed from their position. In addition to the above, when the judge (qadi) wants to Judge according to the Islamic law, it is the government that prevents him from doing so. Therefore, the Judges of shari’ah courts should try to obtain such morals or code of conduct, in order t be free from Allah’s punishment.
4.2 JUDGES AND JUDGEMENTS OF SHARI’AH COURTS IN ZAMFARA STATE
The judges of the shari’ah courts ruling in accordance with Islamic religious law (shari’ah) appointed by the ruler of a Muslim state.
The judgment of a judge (Qadi) of the Sharia’h court must be based on the qur’an, sunnah and Ijma’ (the consensus of Muslim scholars). The term judge is not a new appointment but it was the earliest time since the time of the prophet (S.A.W) and remained term used for judges through out the Islamic history and the period of the caliphates up to our present day to day and continued up to date.4
JUDGES ENFORCE COURT PROCEDURE
The Judges first role is to make sure all the parties and witness follow proper room procedure. Although this does’nt sound particularly exciting, procedure was designed to ensure that every one who cames to court gets a fair trial.
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As far a judges are concerned we can see the procedure and ruling came in to play in the court when a judge responds after one of the lawyers makes in objection.
In such circumstances, the judge is usually on the part of procedure that governs evidence. The jury is only allowed to see or hear certain evidence so that they are not unfairly prejudicated toward (or against) one party. Although many questions about evidence are settled before the start of trial in pre-trial motions, some times these decisions have to be made on the fly times these decisions have to be made on the fly while court is in session5.
JUDGES DECIDE ISSUE OF LAW
Most trials have two arguments going on at the same time:
1- The first is the argument over the facts of the case: who did, what, where and when. The jury usually decides these questions, although in some types of cases the judge can act as fact finder.
2- The second argument is about the laws each written by determining the exact status of the law. Then, the lawyers argue with each other about why the lawyers favour their respective clients.
Sometimes, when both parties mostly agree on the facts, this happens during summary Judgment. When the facts are in dispute, the judge will provide the jury with instructions about the law so that the Jury can make on educated decision about the case.6
THE QUALITY OF A JUDGEMENTS
65
The zamfara chief judge decrees quality of judgment by Qadat (judges).
The chief judge of Zamfara state, “Justice Kulu Aliyu”, has directed the Grand Khadi to organize refresher course on application of criminal justice under the peal code for the Qadis (Judges) of shari’ah court. The chief judge gave the directive on Friday during her visit to mafara satellite prison in continuation of her officer visit to prison.
Justice Kulu Aliyu noted that Qadis (Judges) were delivering judgments base on the wrong laws, saying that this often times led to mis carriage of Justice.
some of these shari’ah court Judges deliver their judgment as if they never read the provisions of the law and have no recourse to the principles of fair hearing and justice in the discharge of their responsibilities.7
The chief Judge’s comment followed her discovery of cases of mis carriage of justice by the Judges in the course of her visit to the prisons.
A 30 years old Kabiru ladan was sentenced to one year imprisonment for stealing a Nokia, handset worth #1,500 and this case emanated from the judgment delivered by a Qadi (judge) Ladan who had already spent five months out of his term, told the chief Judge that he sold the stolen handset for #500 and used it to feed his family. The convict was given 20 stokes of the cane and was set free, because according to the chief judge, the offence attracts a maximum of one month imprisonment in line with the provisions of the penal code.8
Chief judge Kulu Aliyu also set free one Aliyu Musa, convicted for stealing a sheep for #19,000 out of which #15,000 was recovered by the court and that he paid additional #45,000 being the cost of the sheep approve by the Qadi of Maradun
66
Higher shari’ah court, Malam Muhamamd Madaci. He said further that Madaci also administered 50 strokes of the cane on him and sentenced him to six months imprisonment. The chief Judge then discharge the convict, directing the judge to report to the Grand Khadi in Gusau.9
Justice Kulu Aliyu also released the following inmates:
1- Buhari Aliyu 2- Sama’ila Tsalha 3- Muhammad lawali 4- Babuga Sajo
5- Aliyu Abubakar, a student of the federal polytechnic, Kaura Namoda.10 4.3 CASE THAT SHARI’AH COURT ENTERTAINED IN ZAMFARA
STATE
The Shari’ah courts have jurisdiction to hear and determine civil matters and cases where the parties are Muslims and in criminal offences where the suspect (s) or accused person(s) is/are Muslims, or person (s) he voluntary subject him/themselves to the Jurisdiction of the shari’ah courts, thus, for the purpose of sub-section (1) of this section, the shari’ah courts shall be competent to decide all civil matters and cases if all proceeding involving:
1- Marriage under Islamic law (al-Nikah)
2- Guardianship and maintenance (al-kafalah-waal-Nafaqa)
3- Succession (Mirath), will (wasiyyah), Gift (Hibah), endowment (waqf), pre-emption (shuf’ah) and trust (amanah).
67 4- Land lae (hukm nizam al-Ard).
5- Contract (al-Aqd) 6- Tort (al-Diyya)
7- Commercial law (Ahkam al-Buyu)
8- Partnership and company law (al-musharakah wa al-ahkam al-sharikah) for the purpose of section (2) of this section shari’ah courts shall be competent to try all criminal cases in which suspect (s) or accused person (s) is/are Muslims, include:
1. Homicide (Qatl al-Nafs) 2. Robbery (al-Muharaba) 3. Theft (as-sariqah) 4. Defamation (al-Qadhaf) 5. Drunkness (hurb al-Khamr) 6. Causing grievious hurt (al-Qisas) 7. Homo sexuality (al-liwat)
8. Adultery (al-zina) 9. Lesbianism (al-Sihaq) 10. Bestiality (Wad’al-Bahima)
11.Offering and receiving of gratification (al-Rissiwa) 12. Perjury (al-Tawir)
13. Criminal breach of trust (al-Khiyanah) 14. Cheating (al-Qish)
68 15. Mischiefs (al-fasad)
16. Receiving stolen property (Shara’u mata’al-sariqah) 17. Giving false evidence (shahadat al-zur).11
Similarly, something very impressive was that, before the implementation of shari’ah in zamfara state, lower courts have very limited jurisdiction in terms of criminal offences and could not try homicide cases. Hwoever, with the introduction and implementation of shari’ah legal system in the state, any shari’ah court of whatever grade can fully try and convict any criminal case in as much as the accused is a muslim.
The applicable laws in both civil and criminal proceedings shall include:
1- The Glorious Qur’an
2- Sunnah (Hadith of the prophet (S.A.W) 3- Ijma’
4- Qiyas
5- Masalih al-mursalah 6- Istihsan
7- Al-urf
8- Qawl al-sahabi
9- Other subsidiary sources of shari’ah.12
The reference books to be used by the shari’ah courts shall include the following texts and authorities:
69 1- Al- Risalah
2- Mukhtasar 3- Tuhfah 4- Al-adawi
5- Al-fawakh al-Dawani13 And other Maliki books 4.4 BAIL AND APPEAL
BAIL: In its literal meaning refers to the release of some body in critical condition upon some stipulated conditions.14
In our case, it refers to a situation where by a person charged by court can be released to his lawyer, relative or surely on some conditions which are to be fulfilled by the surely, lawyer or relative.15
In Islam, bail is allowed and it is broadly classified in to two:
1- Bail in respect of property 2- Bail in respect of person
Number one, stands for a situation where by is guaranteed bail to the effect that he should compensate the property (s) in question within a stipulated time decided by the court either instalmentally or in full.
Number two, stands for a situation where by a person is guaranteed temporary freedom on condition that he must present himself before the court whenever the court demands.16
70 When bail can be granted?
Zamfara state shari’ah criminal procedure code law 2000, when any person accused of an offence punishable with imprisonment for a term not exceeding three years whether with or without fine or caning or with fine only, is arrested or detailed without warrant by an officer in charge of a police, station or appear or is brought before a shari’ah court and is prepared at anytime while in the custody of that officer or before that court to giving such security as may seem sufficient to the officer or court, such person should be released on bail unless the officer or court for reason to be recorded in writing considers that by reason of the granting of bail the proper investigation of the offence would be prejudiced or a serious risk of the accused escaping from justice be occasioned.17
(2) The officer or the shari’ah courts referred to in sub-section(1) if he thinks fit may instead of accepting security from such person discharge him on his executing a bond without sureties for his appearance as provided in section 294 and 295 can bail be taken in case of non-bailable offence? Section 290, sub-section (1) provides that, persons accused of an offence punishable with death shall not be released on bail.18
Sub-section (2) of this section says: persons accused of an offence punishable with imprisonment for a term exceeding three years shall not ordinarily be released on bail; nevertheless, the upper shari’ah court or the shari’ah court of appeal accused as afore said if it considers:
a. That by reason of the granting of bail the proper investigation of the offence would not be prejudiced;
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b. That no serious risk of the accused escaping from justice would be occasioned;
and
c. That no grands exist for believing that the accused, if released would commit an offence.19
Sub-section (3) of this section started that: not withstanding anything contained in sub-section (1) and (2), if it appear to the upper shari’ah court or the shari’ah court of appeal that there are not reasonable grounds for believing that a person accused has committed the offence. But that there are sufficient grounds for further in quiry, such person may, pending such inquiry, be released on bail.20
Power of shari’ah court to direct released on bail:
Zamfara state shari’ah criminal procedure code provided that:
Where any person is accused of an offence, a single Alkali of the upper shari’ah court or the shari’ah court of appeal may, subject to the provision to section 290, direct that such person be admitted to bail.21
Sub –section (2) of this section says that:
When any person is convicted with an offence in a shari’ah court and appeals from such court to the upper shari’ah court of shari’ah court of appeal may, subject to the provisions of section 290, direct that person is a admitted to bail.22
Power of shari’ah courts to order reduction of bail bond:
Shari’ah criminal procedure code provides that: an Alkali of the upper shari’ah court may in any case direct that the bail bond required that an officer in charge of a police station or any shari’ah court be reduced.23
72 APPEAL
The only rooms given to the cases of appeal are three:
1- In tafsira al-Hukkam, it is stated that when an ignorant judge was appointed and judges with ignorance, the case is subject to appeal even if the judgment is right.24
2- In As’hal al-madarik, it is stated that a judge who passed judgment, himself or some body super class has no right to vitiate the judgment unless if the judgment in question contradicts the shari’ah. It went on to define judgment that contradicts shari’ah, as one which contradicts the Qur’an, sunnah and consensus of the Muslim Jurists. So therefore, any judgment with the said problem is subject to re-examination by the Qadi himself his equal or high authority.25
3- Judgment with elements of injustice openly is also subject to appeal.25
Apart from these three instances above, any judgment which is based upon the minority view (shadh) is a subject to re-examination through appeal, for example, the Judgment of Justice Kulu Aliy.27
Again, the judgment that is passed upon presumption is subject to appeal whenever the contrary is proved-these are the few instances in which Islamic law allows the cases of appeal to be adequately entertained and not in every Judgment as is the case in our contemporary shari’ah courts today.